Mozibur Rahman (Appellent)
The Chairman, Dhaka Improvement Trust, D.I.T. Building, Dhaka & others (Respondents)
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
November 20, 1988.
Principle of natural justice
A.C.Rs had been considered without previously informing the appellant of the adverse remarks against which he could make a representation. A little extension of the wellknown rule of natural justice, audi alteram partem — no one should be condemned unheard — does not permit this. Such adverse remarks cannot be taken into consideration in deciding promotion. If out of two or more grounds one is later found to be non-existent, irrelevant or bad then the decision becomes unsustainable on the principle that it is not known to what extent the bad ground influenced the forming of the decision……………………….(13 & 14)
Cases Referred to-
Ashok Kumar Yadav vs. Stale of Haryana, AIR 1987 SC 454
Maksum-ul-Hakim, Senior Advocate, (Sk. Afzalur Rahman, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record— For the Appellant.
Ziaur Rahman Khan, Advocate (appeared with leave of the court) instructed by Md. Aftab Hossain, Advocate-on-Record— For the Respondent No.1.
Respondent No. 2 — Ex-parte.
Civil Appeal No. 34 of 1987.
(From the Judgement passed by the High Court Division Dhaka dated 8.4.87, in Writ Petition No. 120 of 1985).
A.T.M. Afzal J. — This appeal by leave is from the judgment and order dated 8 April 1987 passed by the Writ Bench of the High Court Division, Dhaka discharging the rule in Writ petition No.l20 of l985.
2. The appellant, an Assistant Engineer (Civil) in the employment of the erstwhile Dhaka Improvement Trust (now designated, briefly, as RAZUK) filed the Writ Petition challenging the order dated 16.4.85 passed by the Chairman, D.I.T. (Respondent No.1) promoting the respondent No.2, another Assistant Engineer (Civil), to the post of Executive Engineer (Civil) which fell vacant. The appellant, inter alia, alleged in his Writ Petition that the Respondent No. 2 was junior to him by 7 years, he having been appointed on 26.4.72 and the respondent No.2 on 5.5.79 as Assistant Engineers. It was claimed that the appellant was entitled to promotion to the higher post of Executive Engineer on the basis of seniority. The appellant alleged that respondent No. 2 was abruptly and secretly promoted to the next higher post without complying with the procedure of interview and selection by the Board which was malafide and illegal. His promotion was malafide also because he was given the same even though in 1983 he was charged for misconduct and corruption. The appellant alleged that he was communicated with his A.C.Rs of 1982-1983 and 1984 by a letter dated 19.3.85 which was in violation of the requirements contained in the A.C.R. form itself. It was done intentionally to create hindrance on the way of promotion of the appellant to the next higher post, it was alleged further.
3. In a supplementary affidavit, the appellant staled that his case was better than that of the respondent No. 2 even on merit which was not considered by any selection board or by the respondent No. 1 or by the Board of trustees.
4. In the Affidavit filed on behalf of respondent No.l the allegations made by the appellant were denied. It was staled that the relevant provision of the Dhaka Improvement Trust Service Rules, 1971 provided for promotion from a lower post to a higher post on the basis of ‘merit-cum-seniority’ and not on the basis of seniority alone as claimed by the appellant. It was also staled that the case of all the Assistant Engineers of D.I.T. who were eligible for promotion under the said Rules along with that of the appellant was placed before a selection board duly constituted by the Government for consideration and selection for promotion lo the post of Executive Engineer. The selection board upon examination of the A.C.Rs and other service record of three Assistant Engineers found respondent No. 2 suitable for promotion. The appellant and another were not found fit for promotion in view of their unsatisfactory service record. The recommendation of the selection board was accepted by the Chairman DIT and the impugned order followed. There was thus no malafide as alleged. The respondent staled that the allegation as to A.C.R was not correct and the appellant was duly informed of the adverse remarks made by the counter-signing Officer. The respondent stated that in a departmental proceeding the appellant was found guilty of inefficiency and misconduct and by way of penalty his one year’s increment was slopped. As regards respondent No. 2 it was suited that the charges against him were not established a»«l he was exonerated by the competent authority.
5. In the affidavit-in-reply the appellant alleged that the Chief Engineer (Countersigning Officer) made some uncalled for remarks in his A.C.R without any basis and foundation but his reporting officer (Executive Engineer) always wrote highly praising his activities and recommending for promotion. It was also alleged that the only impartial and outside member of the selection board, namely, the Joint Secretary, Ministry of Works was not present in any meeting of the selection board and he was intentionally kept away from the meetings. It was further alleged that the Secretary of DIT who was a member of the selection board was himself a candidate for promotion to the post of Director and he was recommended by the said board for promotion. The appellant slated that the promotion of respondent No.2 was illegal as, according to government notification dated 1.1.81, seven years experience as Assistant Engineer was necessary for promotion to the post of Executive Engineer.
6. The High Court Division found that the respondent No.2 was recommended for promotion by the selection board acting on the criteria ‘merit-cum-seniority as provided in rule 9(3) of the DIT Service Rules, 1971, that there was no irregularity in the matter of selection and the allegations of the appellant were unfounded. It was also found that the plea of bias against the chairman and the other two members of the selection board could not be substantiated by any material on record. The rule was, therefore, discharged.
7. Leave was granted to consider whether (1) the respondent No. 2 was promoted in violation of any valid rule requiring 7 years service as Assistant Engineer before promotion; (2) whether the constitution of the selection board comprising of three members of whom the Secretary who was himself a candidate for promotion lo the post of Director was one, could be said to be illegal and; (3) whether the relevant A.C.Rs of the appellant containing adverse remarks were manipulated in such a way as to debar him from promotion.
8. As to the first two points the submissions made by the learned counsel for the appellant appear to be rather tentative in nature than of substance. Ii is not disputed that the D.I.T. have its own service rules and no rule therein provides for a qualifying service of 7 years for promotion to the post of Executive Engineer. Mr.Maksum-ul-Hakim referred to a Government recruiting rule but evidently that has no manner of application in the case of DIT. Mr. Maksum-ul-Hakim then argued that notices of the meetings of the selection board were made purposely short and there is nothing to show that the Joint Secretary had received the said notices before the meetings. We do not think much about the submission because there is a presumption that official acts arc regularly performed unless the contrary is proved. It was next argued that in any case in the absence of the Joint Secretary, the selection board was not legally constituted. It is difficult to accept this proposition. There is no requirement that all the members must be present for the validity of the selection board. Furthermore when 2/3rd of the members of any corporate body remain present it becomes competent to transact its business under usual provisions and practice. An impression was sought to be given that the selection board was constituted by the Government and any meeting there of without the representative of the Government would amount to a violation of Government direction. Bui it will be seen (vide Anx. ‘C lo affidavit-in-opposition) that the selection board was suggested by the DIT itself to which approval was given by the Government. However, it is desirable that an outsider as in this case a Government representative should be present in the deliberations of a selection board for promotion if it is so constituted, for, the candidates may not feel that they have been prejudiced by any idiosyncrasy of their bosses who sit in such board.
9. Mr. Maksum-ul-Hakim next argued that the presence of the secretary had dissipated the impartiality of the board because he being a seeker for promotion himself by the same board he was likely to be obliging to other members of the board. This argument of Mr. Maksum-ul-Hakim has a prior premise which has been the main burden of his submission and that is that the Chief Engineer had bias against the appellant and it was he who was calling the tune in the board to debar the appellant from promotion. Mr. Hakim cited some decision for the proposition that it was not necessary lo establish actual bias but it was sufficient lo invalidate the selection process if it could be shown that there was reasonable likelihood of bias. True, but the argument will hold good provided it is founded on allegation of facts. In the same decision on which Mr. Hakim placed reliance AIR 1987 SC 454 (Ashok Kumar Yadav vs. Stale of Haryana) it has been pointed out that the likely hood of bias may arise on account of proprietary interest or on account of personal reasons such as hostility to one party or personal friendship or family relationship with the other. In the present case there is no allegation of fact whatever from which an inference of bias or malafide may be drawn. The appellant has not given any fact in his writ petition to show that either the Chief Engineer or for the matter of that any member of the selection board was cither anti-appellant or pro-respondent (2). Mere incantation of bias or malafide can be of little use unless they are based on facts. Then again any submission on the basis of bias or malafide cannot in fairness be allowed at this stage because the Chief Engineer against whom the same is alleged was not even made a party in the Writ Petition.
10. We think that if there is anything in this case it relates to the consideration of the A.C.Rs of the appellant by the selection board to which we now turn. We called for the A.C.Rs of both the appellant and respondent No.2 and perused them. It is difficult to accept the submission that the adverse remarks against the appellant were manipulated by the Chief Engineer to put an obstacle for promotion of the appellant. However it is on record that the meetings of the selection board were held on 27.2.85, 11.3.85 and 12.3.85. Admittedly the appellant was communicated with the adverse remarks in his A.C.Rs: of 1982-83 and 1984 by letter dated 19.3.85 which was evidently after the meeting of the selection board. The argument was that they were hurriedly ‘created’ for the purpose of the selection board and after doing the mischief the appellant was informed.
11. We find no basis of such argument because it is found that A.C.R. of 82-83 was written by the reporting officer on 29.5.83. The Chief Engineer as the countersigning officer made his adverse remarks on 26 September 1983. The ACR of 1984 was written by the reporting officer on 26.2.85 and the Chief Engineer again made adverse remarks on 10.3.85. It appears to be a coincidence that the ACR of 1984 came to be written at about the time when the meeting of the selection board was in progress. The Chief Engineer obviously held poor opinion about the appellant not only in 1985 but in 1982-83 also when there was no question of promotion. And there cannot be any question that the Chief Engineer was entitled to his views, good or bad.
12. It must be made clear that consideration of A.C.Rs. and other service record for the purpose of promotion is entirely in the hands of the relevant authority. The court docs not sit on appeal on the judgment of or the materials before the selection board. It is well-known that equality of opportunity in public employment is a fundamental right under the Constitution but there is no vested right to promotion. It has to be earned and cannot be enforced. Scarcely ever a court will interfere in matters of promotion unless it can be shown that the selection for promotion has been in violation of any law or minted with any debilitating factor, namely, bias, malafide or unfairness.
13. Upon a scrutiny of the relevant A.C.Rs, and the matter before us we do not think that the appellant can justifiably impute any oblique motive to the Chief Engineer. But then it appears to us that there has been some unfairness done to the appellant by the selection board by taking into consideration the A.C.Rs without communicating the adverse remarks made against him. By doing so not only the instructions in the respect of A.C.Rs have been violated but there is a violation of a more important principle of natural justice. It will appear from the form of the ACR itself that there arc certain instructions which arc meant to be observed and followed. It has been insisted in the instructions that when an adverse remark is made in the confidential report of any officer a copy of the whole report should be furnished to him at the earliest opportunity and in any case within one month from the date the report is countersigned. A serious view should be taken of any failure on the part of the officers concerned to furnish a copy of the report containing adverse remarks to the officer reported upon. The most important of the instructions reads: “7. A confidential report containing adverse remarks should not be taken into consideration until they have been communicated in writing to the officer concerned and a decision taken on his representation, if any”. This provision shows that the appellant was entitled to make a representation against any adverse remark. It also appears from other instructions that following any adverse remark the officer concerned gets a period for correction and in the next year the higher officer gets an occasion to make remarks whether the officer reported upon has or has not taken step to remedy the defects pointed out to him. The appellant can legitimately make a grievance that if the adverse remarks made against him were communicated in time he could not only make a representation but also try to make up the defects mentioned in the remarks. There has obviously been default on the part of the officers responsible for preparation and maintenance of A.C.Rs. Whosever’s fault it was the fact remains that the selection board could not in all fairness to the appellant, take into consideration the adverse remarks made in the A.C.Rs of 1982-83, 1984. It may be argued that besides the said A.C.Rs there were other materials upon which the decision of the selection board can be justified. It cannot be ignored, however, that the consideration of the A.C.Rs must have had its effect on the ultimate decision. There is a well-known principle in law that if out of two or more grounds upon which a decision was taken by any authority, one of the grounds is later on found to be non-existent, irrelevant or bad then the decision becomes unsustainable on the principle that it is not known to what extent the bad ground influenced the forming of the decision.
14. Far more important, however, is the fact that the A.C.Rs had been considered without previously informing the appellant of the adverse remarks against which he could make a representation. A little extension of the well-known rule of natural justice, audi alteram partem — no one should be condemned unheard — does not permit this. All said and done we arc clearly of the view upon the facts of the case that the fairness principle has not been adhered to knowingly or unknowingly, and this is why we consider that an interference with the impugned order is called for.
15. Although the order promoting the respondent No. 2 will be set aside he will not be deprived of any benefit accruing to him on the basis of the said order as he will be deemed to be acting as Executive Engineer temporarily until a fresh selection is made.
16. In the result, this appeal is allowed without any order as to cost. It is declared that the order dated 16.4.85 passed by respondent No.1 has been made illegally and without any lawful authority. Let there be a fresh selection for promotion to the post of Executive Engineer as soon as possible.
Source: 41 DLR (AD) (1989) 131